Rule of Law

Topics: Law, Human rights, Universal Declaration of Human Rights Pages: 36 (13583 words) Published: February 5, 2013
The rule of law is a legal maxim stating that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law, a feature of Roman law, Nazi law, and certain other legal systems.

Albert Dicey
British jurist A. V. Dicey popularised the phrase "rule of law" in 1885. Dicey emphasized three aspects of the rule of law 1.No one can be punished or made to suffer except for a breach of law proved in an ordinary court. 2.No one is above the law and everyone is equal before the law regardless of social, economic, or political status. 3.The rule of law includes the results of judicial decisions determining the rights of private persons.

The phrase has been used since the 17th century, but the concept is much older. For instance Aristotle, the philosopher of Ancient Greece, said "Law should govern". One way to be free from the rule of law is by denying that an enactment has the necessary attributes of law. The rule of law has therefore been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings". At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. •

Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey,[6][7] development of the legal concept can be traced through history to many ancient civilizations, including Ancient Greece, Ancient China, ancient Mesopotamia, and Ancient Rome.[8]

In Western philosophy, the Ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law: It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws. According to the Ancient Roman statesman Cicero, "We are all servants of the laws in order that we may be free." During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus) and above the law, but those with grievances could sue the treasury. In Ancient China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law. In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to. Middle Ages


Bibliography: 1. OSISA (Olivier, Louise), “Constitutional Review and Reform: And the Adherence to Democratic Principles in Constitutions in Southern African Countries”, 2007
2. Danwood Chirwa, “Human Rights under the Malawian Constitution”, JUTA, 2011
3. The report of the JUSTICE constitution committee, “A British Bill of Rights Informing the debate”, 2007
4. The South African 1996 Constitution
1. ^ Cole, John et al. The Library of Congress, page 113 (W. W. Norton & Company 1997).
5. ^ Craig, Paul P. (1997). "Formal and substantive conceptions of the rule of law: an analytical framework". Public Law: 467.
6. ^ a b c Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949).
7. ^ Bingham, Thomas. The Rule of Law, page 3 (Penguin 2010).
10. ^ Cooper, John et al. Complete Works By Plato, page 1402 (Hackett Publishing, 1997).
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